Citation Nr: 0009583
Decision Date: 04/11/00 Archive Date: 04/20/00
DOCKET NO. 97-17 714 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
ATTORNEY FOR THE BOARD
C. Fetty, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1964 to
December 1968.
This appeal arises from a June 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, that denied service connection
for posttraumatic stress disorder (PTSD). The veteran has
appealed to the Board of Veterans' Appeals (Board) for
favorable resolution of the claim.
FINDINGS OF FACT
1. All evidence necessary for equitable resolution of the
claim has been obtained.
2. The veteran did not engage in combat against enemy forces
during service.
3. The veteran does not have PTSD.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by active service.
38 U.S.C.A. §§ 1110, 1137, 1154(b), 5107 (West 1991);
38 C.F.R. §§ 3.303, 3.304(d), (f), 3.307, 3.309, 4.125
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim for
service connection for PTSD is well grounded-meaning
plausible. He has submitted medical evidence of a diagnosis
of PTSD, his own lay evidence of non-combat, in-service
stressful incidents, and medical-nexus evidence linking his
PTSD to his military service. Thus, a well-grounded claim
has been submitted. See Patton v. West, 12 Vet. App. 272,
276 (1999).
While the establishment of a plausible claim does not dispose
of the issue, it does trigger VA's duty to assist the veteran
in the development of facts favorable to the claim. See
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1998);
Littke v. Derwinski, 1Vet. App. 90, 91-92 (1990). The Board
finds that, in this case, VA's duty to assist in the
development of the claim has been satisfied.
I. Factual Background
The veteran's service department records indicate that his
naval occupation was AM-6800 (aircraft mechanics). He
received decorations including the Vietnam Campaign Medal and
the Vietnam Service Medal with three Bronze Stars. His
service personnel records do indicate that he received
hazardous duty pay for service aboard aircraft carriers in
Southeast Asia, but do not conclusively indicate
participation in combat.
The veteran's service medical records (SMRs) do not indicate
complaint or treatment for any psychiatric condition nor do
the post-service records show treatment for any psychiatric
condition within a year of discharge from active service.
In December 1995, the veteran claimed service connection for
PTSD and underwent VA PTSD evaluation. The veteran related
his stressful experiences as being "highlined" or transported
via suspended cable between ships underway when a mishap left
him dangling very dangerously amidships for 10 minutes.
Other reported stressful events were witnessing a serviceman
accidentally back into a whirling aircraft propeller and
witnessing a serviceman lose his legs in an aircraft elevator
accident aboard the carrier. According to a clinical
psychologist, the veteran was found to have service related
PTSD. The Axis I diagnoses were PTSD as the primary
diagnosis and major depressive episode, recurrent, as a
secondary diagnosis. The examiner also noted that the
veteran was interviewed in accordance with DSM (Diagnostic
and Statistical Manual) IIIR, leading to a secondary
diagnosis of major depressive episode.
In December 1995, the veteran's spouse reported marital
disagreements with the veteran.
In another December 1995 statement, the veteran reported that
he saw pilots pulled from burning aircraft wreckage and that
he was thrown from the highline chair while amidships but
caught a small line and hung on. He said that he had
nightmares, flashbacks, anger and depression for no apparent
reason and had trouble holding any job.
A March 1996 VA psychological examination report notes that
the veteran reportedly served three tours in Vietnam from
1965 to 1968 working as an aviation ordinance handler.
During the examination, the veteran reported that his most
stressful incident was being caught on the highline between
two ships. He reported witnessing other accidents and was
fearful of injury or death aboard the aircraft carrier. He
did not describe any significant re-experiencing of an event
or any avoidance of activities associated with the trauma.
He appeared quite angry and full of rage, but there was no
sign of anxiety. The examiner noted review of the claims
file, including the prior diagnosis of PTSD. The examiner
reported that the purpose of the evaluation was to rule in or
out PTSD. The examiner noted that the previous examination
report did not include a comprehensive psychosocial history
taking other factors into account. The examiner noted that
the veteran did have stressors, that the discussion offered
in the 1995 examination report was not compelling, and
concluded that the veteran did not have PTSD. The examiner
did note that the veteran exhibited anger, hostility and
depression that probably stemmed from his childhood. The
examiner also felt that the veteran's multiple medical
problems were major stressors. The diagnosis offered on Axis
I was major depression, recurrent and moderate.
VA outpatient and inpatient records indicate medical care at
various times for non-service-connected disorders such as
heart disease and diabetes. They do not reflect PTSD.
The RO received additional records from the U. S. Armed
Services Center for Research of Unit Records (USASCRUR) in
October 1998. The records confirm that a serviceman ran into
the arc of an aircraft propeller during the time that the
veteran served with Attack Squadron 22 and that pilots on
combat missions were shot down during that time. These
records also reflect that an aircraft crashed into the sea
while attempting to land on the carrier and the pilot went
down with the plane. The reports note that numerous ship-to-
ship replenishments were carried out while underway and that
at least one collision occurred with a re-supply ship. The
aircraft carrier brushed an ammunition re-supply ship
knocking out two of the three aircraft elevators aboard the
carrier. Highline transfers of personnel were not noted in
these reports. The reports note that one pilot and aircraft
were simply blown overboard by the exhaust blast from another
engine and were lost at sea.
The veteran underwent a VA PTSD examination in September
1999. During this examination, the veteran reported that
while aboard ship a bomb broke open but was successfully
thrown overboard without exploding. He reported dangling
between ships when his foot got caught in a cable during a
highline transfer. He reported that a plane crash-landed and
the tail remained aboard but the pilot and remainder of the
aircraft went over the edge and were lost. He reported that
he was not in any greater danger than were other personnel
aboard the carrier. He denied significant war related
nightmares or flashbacks. The examiner offered diagnoses of
generalized anxiety disorder and depression secondary to
medical condition.
II. Legal Analysis
In order to establish service connection for a disability,
the evidence must show that it resulted from a disease or
injury incurred in or aggravated by active service.
38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1999). A chronic disease will be considered to have been
incurred in service when manifested to a degree of 10 percent
or more within 1 year from the date of separation from active
service. See 38 C.F.R. § 3.307 (1999). Psychosis shall be
considered a chronic disease within the meaning of 38 C.F.R.
§ 3.307. See 38 C.F.R. § 3.309 (1999).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. § Sec.
4.125(a); a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. If the evidence establishes that the veteran
engaged in combat with the enemy, and the claimed stressor is
related to that combat, his lay testimony-alone-may
establish the occurrence of the claimed in-service stressor
in the absence of clear and convincing evidence to the
contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of his service. 38 C.F.R. § 3.304(f) (1999); see also
Cohen v. Brown, 10 Vet. App. 128 (1997).
If the diagnosis of a mental disorder does not conform to DSM
IV or is not supported by the findings on the examination
report, the rating agency shall return the report to the
examiner to substantiate the diagnosis. 38 C.F.R. § 4.125(a)
(1999).
If the diagnosis of a mental disorder is changed, the rating
agency shall determine whether the new diagnosis represents
progression of the prior diagnosis, correction of an error in
the prior diagnosis, or development of a new and separate
condition. If it is not clear from the available records
what the change of diagnosis represents, the rating agency
shall return the report to the examiner for a determination.
38 C.F.R. § 4.125(a) (1999).
In reviewing the RO's denial of the appellant's PTSD claim in
this case, the Board finds that the veteran is not a combat
veteran-nor has he alleged that he is. Therefore, his
allegation of service-related stressors is not accorded
special consideration under 38 U.S.C.A. § 1154(b) and
38 C.F.R. § 3.304(d).
A diagnosis of PTSD based on active service has been made in
this case, although the evidence also indicates a later
change in the diagnosis of the mental condition. Official
records establish that some of the veteran's claimed
stressors occurred and that others, such as the highline
incident and the aircraft elevator accident, were possible.
However, the crux of this case is whether the evidence is
sufficient to establish equipoise on the issue of whether the
veteran has PTSD. The Board notes that, according to
38 U.S.C.A. § 5107(b), when there is an approximate balance
of positive and negative evidence regarding the merits of a
material issue, the benefit of the doubt regarding each such
issue shall be given to the claimant. Section 5107(b)
codifies the so-called equipoise doctrine under which once a
claimant submits a well-grounded claim, that claim must be
granted unless the evidence preponderates against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-56 (1990).
The favorable medical evidence in this case indicates that a
diagnosis of PTSD related to active service was given during
a December 1995 VA examination. The Board notes that this
examination report mentions DSM IIIR, but that current
regulations require DSM IV. See 38 C.F.R. § 4.125(a) (1999).
The only other evidence favoring the claim is the veteran's
assertion that he has PTSD; however, he is not competent to
render evidence on a medical matter such as a diagnosis of a
medical condition. Espiritu v. Derwinski, 2 Vet. App. 492,
494-5 (1992). In this regard, the Board cannot accord any
weight to his lay opinion.
In 1996 and again in 1999, different VA examiners examined
the veteran but did not render a diagnosis of PTSD;
essentially, they changed the diagnosis. Moreover, the 1996
examiner specifically ruled out PTSD on the basis that the
requisite PTSD symptoms were not shown. The Board finds that
there is no factual inconsistency with which to lessen the
probative value of either of the two latter reports.
In determining what weight to accord the conflicting medical
opinions, the Board finds reasons for placing less reliance
on the 1995 examiner's diagnosis. First, as noted above,
that examination appears to have been conducted according to
DSM IIIR standards, which are now outdated. If that were the
only examination report of record, then it would have to be
returned to the RO as inadequate. Second, the 1996 examiner
found that the symptoms were not consistent with PTSD.
Third, the 1999 examiner expressed concern that the 1995
examiner essentially had not evaluated the veteran in a
detailed fashion. The Board finds the reasoning of the 1996
and 1999 examiners to be somewhat persuasive and will
therefore accord greater weight to those opinions.
In weighing the evidence for and against the claim, the Board
finds that the preponderance of the evidence is against the
claim. Because the preponderance of the evidence is against
the claim, the benefit of the doubt doctrine is not for
application. See 38 U.S.C.A. § 5107(b) (West 1991);
Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The claim
for service connection for PTSD must be denied.
The Board also notes that other psychiatric diagnoses have
been rendered in this case; however, these have not been
linked by medical evidence to the veteran's active service.
Rather, the medical evidence links these to his medical
condition or to other, possibly pre-service, events.
ORDER
Entitlement to service connection for PTSD is denied.
J. E. Day
Member, Board of Veterans' Appeals